Gotham Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1964

150 N.L.R.B. 63 (N.L.R.B. 1964)

GOTHAM INDUSTRIES, INC. 63
Gotham Industries , Inc. and Retail , Wholesale and Department
Store Union . Case No. 1-CA-4429. December 14, 1964
DECISION AND ORDER
On September 29, 1964, Trial Examiner John H. Eadie issued his
Decision in the above -entitled proceeding , finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner 's Decision. He also found that Respondent
had not engaged in other unfair labor practices alleged in the com-
plaint and recommended dismissal of those allegations . Thereafter,
the Respondent filed exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom , Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the Trial Ex-
aminer's Decision , the exceptions and the brief , and the entire record
in the case , and hereby adopts the findings, conclusions , and recom-
mendations of the Trial Examiner with the additions and modifica-
tions noted below.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner, and orders that Gotham Industries,
Inc., Fitchburg, Massachusetts, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Examiner's Recom-
mended Order, with the following addition :
Add the following paragraph as paragraph 2(b), the present para-
graph 2(b) and those subsequent being consecutively relettered:
"(b) Notify Joseph Landry if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon
application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was held before Trial Examiner John H. Eadie in Fitchburg,
Massachusetts , on March 17 and 18, 1964, on the complaint of the General Counsel
150 NLRB No. 5.
775-692-65-vol. 150-6
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the answer of Gotham Industries, Inc., herein called the Respondent., The issue
litigated was whether the Respondent violated Section 8(a) (1) and (3) of the Act.
The General Counsel and the Respondent filed briefs after the hearing.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Massachusetts corporation with its principal office and place
of business in Fitchburg, Massachusetts. It is engaged in the manufacture, sale, and
distribution of plastic housewares and related products. The Respondent annually
sells and distributes products valued in excess of $50,000, of which products valued
in excess of $50,000 annually are shipped from the Respondent's Fitchburg plant
directly to States of the United States other than the Commonwealth of Massachu-
setts. The complaint alleges, the Respondent's answer admits, and the Trial Exam-
iner finds that the Respondent is engaged in commerce within the meaning of the Act.
If. THE LABOR ORGANIZATION INVOLVED
Retail, Wholesale and Department Store Union, AFL-CIO, herein called the
Union, is a labor organization which admits to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Joseph Landry
Landry was hired by the Respondent in July 1962. He worked as a "floorboy"
under Foreman William Shute.
The Union began to organize the Respondent's employees during the latter part
of July 1963. Shortly thereafter, David Wilbur, molding superintendent, had a con-
versation with employee Dorothy Pelletier. He told her that he was "very much
surprised" to learn that she was "one of the union organizers."
Some few days later the Respondent promulgated and issued to the employees a set
of 42 rules, 1 of which prohibited "Unauthorized distribution of literature, written
or 'printed matter of any description on company premises." About the same time,
Robert Gottsegen, general manager of the Respondent, met with the employees and
discussed the rules. Concerning the above rule, he stated that the employees could
not "pass any kind of literature, union or otherwise, without the permission and ex-
press consent of the office on the company premises." Gottsegen mentioned that
"unauthorized literature" included "those little yellow cards that are being passed in
the shop." 2 Immediately after the meeting Gottsegen spoke to Pelletier, telling her
that he had heard that she was "president of the union."
Landry became the leader of the union movement after the issuance of the rules.
He passed out union leaflets and cards and arranged for union meetings. He ap-
pointed "a committee" of five employees, one of whom was Sherman Wilder, for
the purpose of organizing the plant.
About the same time Wilbur had a conversation with employee Verna Stout. He
asked her if she had seen "any of the union cards that were being passed in the shop."
When she replied that she had, he asked her if she knew of "anyone specifically"
who was passing out the cards. Stout answered "No." Wilbur then stated that he
suspected Wilder, and asked her if she would "find out who was passing out the
cards."
During her break time, employee Hiroko Roderick gave a union card to another
employee. At the end of the shift Wilbur came to Roderick's machine and asked
her if she had passed out any union cards. She replied, "I gave one to Mattie," and
asked him if he wanted it. At Wilbur's request, Roderick got the card back and
gave it to him.
On August 16 Landry received a warning slip for improper stenciling of cartons.
On or about August 19 his job was changed from floorboy to machine operator; and
his hourly rate was reduced from $1.70 to $1.55.3 That same day, Shirley Landry,
I The charge filed on January 3, 1964, was served on the Respondent on January 6, 1964.
The amended charge, filed on January 7, 1964, was served on January 8, 1964. The com-
plaint issued on February 17, 1964.
The Union's designation cards were yellow.
It does not appear that the reduction in pay became effective until September 2
Landry's pay slips were received in evidence . They show that he continued to receive the
hourly rate of $1.70 through August 24.
GOTHAM INDUSTRIES, INC. 65
the wife of Joseph Landry and also an employee of the Respondent, went to see
Wilbur. When she asked him why her husband had been demoted, he replied, "You
know why." She answered that she did not know the reason and pressed him for an
answer to her question. He told her, "Because of those little yellow cards . . . . I
don't personally care whether the union gets in here or not. I can run the shop with
or without a union, but if I run it with a union , I run it without a heart . . . I
have no personal feelings in this matter one way or the other, but . . . Mr. Gottsegen
has a passionate hatred for unions."
Joseph Landry was scheduled to work on Saturday, August 24. About 9 a.m.
Shirley Landry called Shute to report that her husband would be absent due to ill-
ness .4 When she reported for work at the plant about 6:45 a.m. on August 26, she
was informed that her husband had been suspended for a week. Later that day she
spoke to Wilbur and asked him if he had "anything in writing" to show her husband
had been suspended. He handed her a warning slip, dated August 24, 1963, with the
reason thereon noted as "Absenteeism and Tardiness." When she asked him if the
suspension was a result of the little yellow cards "the same as the other," he nodded
affirmatively. Joseph Landry returned to work on September 2.
On Saturday, September 14, Winston Shute, a brother of Foreman William Shute,
came to Joseph Landry's machine and asked him for a union card. Landry told him
to wait until he (Landry) had his "afternoon break" at 12:50 p.m. and that he would
give him a card then. When Landry was relieved at his machine by employee
Verna Stout, he went to the men's room where he met Shute and gave him a union
card. Winston Shute immediately went to his brother's office, gave him the union
card, and told him that Landry had given it to him in the men's room. When Landry
returned to his machine after an absence of about 10 minutes, he was called to the
office of William Shute. Shute gave him a warning slip with the reason noted as,
"Unauthorized distribution of literature, written or printed matter of any description,
on company premises" and told him, "This is your third and last warning. You're
fired." •
On September 16 Joseph Landry and Ralph LeMay, the business agent of the
Union, went to the plant in order to see Gottsegen. Gottsegen sent word that he did
not want to see the representative of the Union but that he would talk to Landry alone.
On September 21 Shirley Landry had a conversation with Gottsegen. He told her
that her husband had been suspended on August 24 "because he had failed to call in
at the calling time, which was 7 o'clock for the 7 to 3 shift"; that he was going to
post a rule on the calling time for the three shifts; 5 and that Landry had been sus-
pended on September 14 "for giving Winston Shute a union card." He discussed the
Union, telling her that he did not believe she would vote for the Union and that she
did not need the Union to represent her since she was "a very good worker:" He
then told her to have her husband come to see him on September 24.
Joseph Landry went to the plant on September 24 and spoke to Gottsegen. At
Gottsegen's request, Landry related the facts concerning his giving a union card to
Winston Shute. Gottsegen then told him that his suspension 6 was unfair; that he
did not want him to pass out union cards in the plant; and that he could distribute
them and hold union meetings on his own time "outside and off the property."
Landry return to his machine job the following day, September 25.
On October 5 LeMay called the plant and spoke to Foreman Shute. He told Shute
that a Board hearing was scheduled to be held in Boston on October 7, and asked
that Joseph Landry, Wilder, and two other employees be excused from work that day
so that they could attend the hearing. Shute said, "Okay." Landry was absent from
work on October 7 in order to attend the hearing. On October 8 the Union dis-
tributed a leaflet reporting on the Board hearing. The names of the "organizing
committee," including those of Landry and Wilder, were listed on the bottom of the
leaflet.
About the middle of October, Landry was returned to his floorboy job at the hourly
rate of $1.65.7 When he performed "assorting" work, he received an extra 5 cents
per hour.
4 Joseph Landry worked on the 7 a.m. to 3 p in. shift.
6 The Respondent 's rules, referred to above, did not cover this subject.
6 Landry testified without contradiction that the discharge was changed to "a suspen-
sion through a telegram" sent to him by the Respondent.
' 7 Gottsegen testified to the effect that "the standard rate of pay for a second shift floor
boy is $1.70 an hour" ; that when Landry received a raise to $1 70 he was on the second
shift for a short time ; and that through a clerical error the Respondent failed to reduce
Landry's pay to $1.65 per hour "when he transferred back to the first shift."
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 21, 1963, the Board conducted an election at the Respondent's plant.
The Union lost the election. By a Supplemental Decision, dated December 27, 1963,
the Acting Regional Director set aside the election and directed a new election.
On December 31 Landry was about 30 minutes late for work. After he had
worked for about a half an hour, he was called into Shute's office. Shute told him
that be was suspended and gave him a warning slip for "Absenteeism and tardiness."
A charge was filed with the Board in his behalf by the Union on January 3, 1964.
On January 10, 1964, Landry received a letter from the Respondent in which he
was notified that his suspension was changed to a termination of employment.
In making the above findings of fact I have credited portions of the testimony of
Joseph Landry, Shirley Landry, Stout, Pelletier, Roderick, LeMay, and Shute. Testi-
mony contrary to these findings is not credited.
Gottsegen testified that: before Landry was suspended on December 31 he con
ferred with Shute and Wilbur; Shuted wanted "to get rid of Landry because of his
attendance and tardiness record"; Shute showed him a-record which he had been
keeping "as to Landry's punctuality and his attendance"; and he (Gottsegen) "indi-
cated to Shute on the basis of this record that we will not terminate him right now,
we can suspend him and I will check the timecards to verify the accuracy of this
record." Shute's record was adduced in evidence. For the year of 1963 it shows
that: Landry was late for work once during March; he was absent twice during May
due to sickness; he was absent twice due to sickness and was late once during June;
he was late twice and "absent without notice" once during August; he had an "ex-
cused absence" on October 7 and was sick on October 31; he was late once and ab-
sent twice due to sickness during November; and he was late eight times and absent
without notice once during December .8
Concerning his reason for deciding to discharge Landry, Gottsegen testified as
follows:
a review of the record indicated he was absent 25 times during the year
and late 19 times. He had six latenesses in the month of December, 3 absences
in the month of December, and apparently all our oral and written warnings
did not have the effect that he wanted, and we could no longer accept this situa-
tion, so we decided to suspend him with view to discharge, and then we subse-
quently decided to make it a discharge.
In a molding factory the most important thing is to keep machines running.
We have 15 machines in our plant and we have the exact number of people on
the payroll to man the 15 machines. If one person is absent then a machine
must go down, or 7 percent of the productivity of the plant is lost for the period
of his absence. If a person is late, for the duration of his lateness at least 7 per-
cent of our entire factory is idle. We try to prevail upon other employees to
stay over and work a second shift because it's so important to our profitability
to keep machines running continuously. If people cannot come to work on time
and are going to be delinquent in their attendance, then we cannot function
profitably, and if we don't make a profit then there'll be no payrolls and there'll
be no factory. We must have people who come to work on time and have good
attendance records. If people have a tendency towards sickness, I wish them
good health, but unfortunately we would have to terminate them even if some-
one had good legitimate excuses for being sick continuously, because we cannot
employ someone who's inclined toward sickness.
* * * * * * *
If we can be called prior to the beginning of a shift, this gives us a little
bit of time to prevail upon people to work overtime. If someone doesn't show
up at 7 o'clock and someone has a coat on ready to leave and is waiting for re-
lief on a machine, at that time, they may have plans perhaps and things of that
nature and there is a less likelihood of their staying on. If we're notified a
couple of hours ahead, we can go on the floor and ask who's willing to stay over.
* * * * * *
There's no rule. There's no written rule. Everyone knows they should call
in before the shift.
s Shirley Landry testified that her husband was absent on December 17 because "he
didn't have any way of getting to work" as he was having his car fixed ; and that at
7:30 am. that day she called Shute and notified him.
GOTHAM INDUSTRIES, INC. 67
In a letter to the Board , dated January 8, 1964 , Gottsegen set forth Landry 's record
of attendance as follows:
Absent Late Number of
minutes
10/7 10/26- --------------------------------- 5
10/30 11/8----------------------------------- 12-17
11/1 12/3----------------------------------- 5-11
11/2
Without excuse.
12/4----------------------------------- 5
11/22 12/14----------------- ----------------- 18-23
12/17 12/18-------------- -------------------- 5-11
12/24-------------- -------------------- 5-11
12/30 Excused 12/26------------ ---------------------- 5
12/27- --------------------------------- 24-29
12/31----- ----------------------------- 30-35
In his testimony Gottsegen admitted that both Shute 's record and the information
that he supplied to the Board were "inaccurate." At first Gottsegen testified that
Landry was absent three times during December. Later he testified that Landry was
absent only once during December.
Shirley Landry testified that: Her husband was not absent on October 30; after
working for about an hour on October 31, he "was driven home by assistant foreman,
George Pepin" because of illness; he was absent on November 1 and 2 due to illness;
she called Shute and notified him that Landry would not be present on November 1
and 2; 9 she also notified George Lapointe, assistant foreman , when she herself re-
ported for work; Landry was absent from work on November 22 in order to attend
to union business ; and although she knew "the night of November 21st" that Landry
would be absent , she did not call the shop until about 9 a.m. the following day in
order to notify Shute.
From all of the evidence it appears that : During 1963 Landry was absent from
work for only 10 whole days and part of 1 day; the Respondent was notified and ex-
cused 7 of these absences due to illness; the absence on October 7 was "excused" in
advance ; Shirley Landry notified the Respondent of Landry 's absences on August 24,
November 22, and December 17; and during 1963 Landry was late for work only
13 times, 8 of which were during December.
I am convinced and find that Landry's demotion on August 19 and his suspensions
on August 24 and September 14 were violative of Section 8(a)(3) and ( 1) of the
Act. Shute admitted in his testimony after reviewing his own record that Landry
was not absent or tardy excessively as of August 24. Wilbur's statements to Shirley
Landry, to the effect that Landry 's demotion to machine operator and his suspension
on August 24 were because of the "little yellow cards," clearly show the Respondent's
motive in the matter.
The evidence conclusively shows that on September 14 Landry gave a union card
to Winston Shute during his break time while in a nonwork area. The warning slip
issued to Landry confirms that the suspension was for distribution of a union card
"on company premises ." The promulgation and enforcement of such a broad no-
distribution rule was an unwarranted interference with the rights of the employees
under Section 7 of the Act and violated Section 8 ( a) (1) of the Act . It is also found
that Wilbur's interrogation of Stout and Roderick was violative of Section 8(a)(I)
of the Act.
Insofar as Landry's suspension on December 31 and later discharge are concerned,
I am convinced from all of the evidence that the Respondent was seizing upon a pre-
text in order to rid itself of a leading adherent of the Union . This action occurred
only 4 days after the election had been set aside . Other than the issuance of warning
slips and the suspension of employee Adolph Humphrey, also on August 24, there is
no evidence that any other employee was suspended or discharged for absenteeism
6 Shute's record supports the above testimony of Shirley Landry . It shows that Joseph
Landry was not absent on October 30, and that he was absent for only part of a day due
to sickness on October 31.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or tardiness. It has been found that Shirley Landry gave notice that Landry would
not be present on November 22 and December 17. Of the 8 days on which it is
claimed that Landry was late during December, it is questionable if he wasp in fact
late on 1 day, and he was late for only about 5 minutes on 4 other days. Accord-
ingly, I find that Landry's suspension and/or discharge on December 31 was viola-
tive of Section 8(a)(3) and (1) of the Act.
B. Sherman Wilder
Wilder was hired during March 1963. He worked as a floorboy for about 5 months
and then became a fork truck operator. He was an observer for the Union at the
election held on November 21.
On January 6, 1964, employees Pearl Hale and Lyndon Taylor each gave Wilder
a warning slip that they had received in the hope that he could "maybe do something
about it" since he was on the Union's "organizing committee." Thereafter he talked
with employees Walter Parker and Adolph Humphrey. They discussed "the charges"
that had been filed against the Respondent "since the election." 10 Wilder told
Humphrey that he had "a couple more charges" that he "could probably file."
Some few minutes after the above conversation ended, Wilder was called into the
office by Gottsegen. Gottsegen asked him if he had just told Humphrey that he had
some charges in his pocket that he was going "to file against the company." When
Wilder admitted having made the statement, Gottsegen asked him if he was "trying
to threaten Adolph to get him to favor the union." Wilder replied that he did not
want to threaten anyone. Gottsegen then asked him, "What's the nature of these
charges?" Wilder at first refused to discuss the charges, but finally stated, "You've
given other people raises and promotions and because I'm in the union, you're not giv-
ing me a raise or promotion . . . . For example, you gave Charlie Boggs a job in
the powder room. I should have gotten that job." Gottsegen then suspended him
for violation of the Respondent's rule against spreading "false or malicious statements
about the company or its supervisors." 11
On January 7, through the intercession of Larry Gottsegen, a supervisor in charge
of the Respondent's toy program, Wilder was notified to report back for work "im-
mediately." On January 8, after he had punched the timeclock about 7:02 a.m., he
met Foreman Shute. Shute gave him two warning slips for "tardiness" on Decem-
ber 31 and January 3, and assigned him to work with Boggs in the "powder room." 12
Shute later came to Wilder and handed him another warning slip for his tardiness
that morning, saying, "Here's another one to add to your collection."
Wilder worked in the powder room that day for about 12 or 13 hours. During'the
day he had conversations with Larry Gottsegen, Boggs, and employee Parker. Wilder
thanked Gottsegen for getting him the job and said that he appreciated it.because it
would mean more money for him. He told Boggs that he liked working in the
powder room and that he liked the overtime work. He told Parker that he was "glad"
to be working in the powder room because he could "make more overtime than
driving the fork truck."
When Wilder reported for work on January 9, he was discharged by Shute. Con-
cerning the incident, Wilder was questioned and testified as follows:
Q. And you had a conversation with Bill Shute)
A. Yes.
Q. And where did this conversation take place?
A. Right in front of the molding room office.
Q. At about what time in the morning?
A. About 7.
Q. Was there anyone else present that you know?
A. Yes, there was three or four people standing around.
10 As related above, a charge was filed by the Union on January 3, 1964
11 Wilder later received a warning slip, dated January 7, 1964, with the reason noted as
"The making or publishing of false, vicious, or malicious statements concerning an em-
ployee, supervisor, the company or its products " .
12 Robert Gottsegen testified to the effect that because of Wilder's "financial plights,
doctor bills, sick children, sick wife" he decided to give him "a break" by letting him
work "in the powder room where he would make more money and have more overtime."'
GOTHAM INDUSTRIES, INC. 69
Q. Now, to the best of your recollection what was the conversation between
you and Bill Shute that morning?
A. I asked him if I could go back to my old job, and I told him I thought that
they had put me down there for punishment and to isolate me from the people,
and he said they put me down there because the powder room was messed up
and he needed me down there, and , he thought I could do a good job.
I told him that I didn't like the powder room and that I would prefer my job
back , and he asked me if I was refusing to work in the powder room , and I told
him, "I'm not refusing to work," I said, "I'll work my job but I won't work any-
one else's." I said , "I don't think it's right for me to work another man's job."
So then he asked me to punch out and talk to Bob Gottsegen , and I didn't know
if Bob had come in yet. He'd probably be home for all I knew, so I asked Bill
to have him come down and talk to me.
He said if I couldn 't wait to talk to Bob , then I was fired , and he wrote out the
slip that said I was fired . He told me to punch out . He told me to punch out
and get off the premises or he'd have me put out.
Shute was questioned and testified to the following:
Q. To the best of your recollection what did Sherman Wilder say and what
did you say at the meeting that took place out-where did you say-near the
time clock?
A. No, outside the office.
Q. Outside the office?
A. Well, I came in to work about my usual time , about 20 minutes of 7, 6:30,
somewhere around there, and as I passed by this group of people, which included
Sherman, he said, "Hey, Shute, I 'want to talk to you."
* * * * * * *
I said , "Fine. Just let me hang my coat up here a second and I 'll be right
back." So .I hung my coat and came out of the office, and I said, "What would
you like?" And he told me that he wasn't going back to the powder room. He
was going back on the fork truck. That was his job ... .
Q. This was all outside?
A. This was outside and I tried to tell him as nicely as I could that he'd have
to work in the powder room, this was where we needed him, and he wouldn't
listen . He started to become boisterous and he was attracting more people, and
it was just about time for shift change, so I said, "Well , Sherman, why don't we
go in the office and talk this thing over." So he said all right, and we went into
the office and we started again to talk. And I explained to him that the new
system that had been put in and why he was being put down there.
Q. Well, what did you say?
A. Well, I explained to him that not only was there a greater chance to make
overtime , but that we needed somebody back there with an amount of intelli-
gence and that we could be sure of that was a good worker.
Q. Is he a good worker?
A. Oh, yes. I wouldn't take that away from Sherman.
Q. So you explained that to him. What did he say to that?
A. He said that he was not being put back there for any other reason than to
be punished , and I asked him how he came up with that solution that he was
being punished whereby he'd be making more money with more overtime and
possibly a greater chance for advancement.
Q. What do you mean by more money and more overtime?
A. Well, the job carries a standard nickel an hour more than a fork truck
driver.
Q. Did you explain that to Sherman?
A. Yes.'
Q. At that meeting in the office?
A. I believe I did. -
Q. And what did he say to that?
A. He just contended that he was being punished no matter how you looked
at it or how you cut it up ; he was still being punished no matter , and I said,
"Sherman , it's ridiculous , but if that's the way you feel, it is." And I asked him
to go down to work and then we could talk it over with Bob or someone else
later on , and he refused . He said the fork truck was his job and that 's all he
was going to do . So, I said, "All right. You can wait and talk to Bob about it."
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And I said, "But if you're going to wait, you're going to punch out and wait." .
and he said, "I won't punch out." And then I said, "Well, I'll punch your card
out." And he said, "You don't have the right to." . I said, "All right, Sher-
man. Wait just a minute." I went into the inner office, which is Dave's office,
and I called Bob Gottsegen, and I explained ... .
Q. Where was Bob?
A. He was at home. I had to wake him up quite early that morning. I ex-
plained the situation to him, what transpired, which took me about ten minutes,
and upon hearing the completion of everything Bob advised me what I should
do, and that was to terminate him.
Q. What did you do?
A. So I wrote out the slip which gave the charges, and I went out and I put
into effect what he had already done by quitting. So I just told him to get off
the property before I had him put off.
A warning slip dated January 9, 1964, was issued with the reason noted as, "In-
excusable insubordination."
I find that the Respondent suspended Wilder from January 6 to 8 because of his
union activities, and that such conduct was violative of Section 8(a) (3) and (1) of
the Act.
The testimony of Wilder and Shute is substantially the same concerning the dis-
charge. In my opinion Shute was the more reliable and credible witness in this con-
nection. But no matter which version is accepted, the Respondent had cause to dis-
charge him for insubordination. He refused to work in the powder room and he
refused to punch out. Wilder testified to the effect that the powder room job was
dusty and isolated, and that on the fork truck job he was "all over the shop." In view
of the fact that he was one of the leading adherents of the Union, the Respondent's
motive in transferring him to the powder room may be questioned. However, in
view of the undisputed fact that he had an opportunity for overtime work on the job,
which he wanted,13 and since he complained to Robert Gottsegen about Boggs' assign-
ment to the powder room, I do not believe that it would be reasonable to infer that
the Respondent was illegally motivated in this connection. Accordingly, I find that
the Respondent's discharge of Wilder on January 9 was not violative of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the Respondent's operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that: The Respondent suspended Joseph Landry from August 24
to September 2, 1963; it suspended him from September 14 to September 25, 1963;
it demoted him with a decrease in pay from $1.70 14 per hour to $1.55 per hour for
the period from about August 19 until about the middle of October 1963; it sus-
pended and/or discharged him on December 31, 1964; and it suspended Sherman
Wilder from January 6 to 8, 1964.
Accordingly, it will be recommend that the Respondent offer Joseph Landry im-
mediate and full reinstatement to his former or substantially equivalent position with-
out prejudice to his seniority or other rights or privileges, and make Joseph Landry
and Sherman Wilder whole for any loss of pay suffered by reason of the discrimina-
tion by payment to each of them of a sum of money equal to that which he would
have earned as wages from the date of the discrimination to the date of reinstate-
ment, less his net earnings during such period, in accordance with the formula pre-
scribed in F. W. Woolworth Company, 90 NLRB 289, together with interest on such
sum, such interest to be computed in accordance with the formula prescribed by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716.
18 Wilder testified that while on the fork truck job he asked Shute three times for over-
time work but was refused
14 The evidence shows that through an oversight Landry received the above rate when he
was transferred to the first shift; and that the proper rate was $1.65 per hour except
when he performed assorting work.
GOTHAM INDUSTRIES, INC. 71
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. By interfering with , restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a) (1) of the Act.
3. By suspending , demoting, and discharging Joseph Landry and by suspending
Sherman Wilder because of their membership in and activities on behalf of the
Union, thereby discouraging membership in the Union , the Respondent has engaged
in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
5. The discharge of Sherman Wilder on January 9, 1964, was not violative of
the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case; I recommend that Gotham Industries , Inc., Fitchburg,
Massachusetts , its officers , agents, successors , and assigns , shall be ordered to:
1. Cease and desist from:
(a) Discouraging membership in the Union , or any other labor organization of its
employees, by suspending , demoting, or discharging employees or otherwise dis-
criminating against them in regard to their hire and tenure of employment or any
term or condition of employment.
(b) Interrogating its employees concerning their membership in or activities on
behalf of the Union, or of any other labor organization.
(c) Maintaining or enforcing a rule prohibiting employees , when they are on non-
working time, from distributing literature on behalf of any labor organization in
nonworking areas of its plant.
(d) In any other manner interfering with , restraining , or coercing its employees in
the exercise of the right to self-organization , to form labor organizations , to join or
assist the above -named labor organization or any other labor organization , to bargain
collectively through representatives of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or
protection , or to refrain from any or all such activities.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer Joseph Landry immediate and full reinstatement to his former or sub-
stantially equivalent position without prejudice to his seniority or other rights or
privileges and make him and Sherman Wilder whole in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the National Labor Relations
Board or its agents, for examination and copying , all payroll records , social security
payment records, timecards , personnel records and reports, and all other rec-
ords necessary for the determination of the amount of backpay due under these
iecommendations.
(c) Post at its plant in Fitchburg , Massachusetts , copies of the attached notice
marked "Appendix ." 15 Copies of said notice, to be furnished by the Regional Di-
rector for Region 1, shall , after being duly signed by the Respondent or its authorized
representatives, be posted by Respondent immediately upon receipt thereof and main-
tained by it for a period of 60 consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not altered , defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 1, in writing , within 20 days from
the date of the receipt of this Decision , what steps it has taken to comply herewith.16
13 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner " In the notice . In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
113,In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director, in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith "
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that the complaint be dismissed insofar as it relates to
the discharge of Sherman Wilder.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Retail, Wholesale and Department
Store Union, AFL-CIO, or any other labor organization of our employees, by
discriminating in regard to their hire or tenure of employment, or any term or
condition of employment.
WE WILL NOT interrogate our employees concerning membership in or their
activities on behalf of the above Union, or of any other labor organization.
WE WILL NOT maintain or enforce any rule prohibiting our employees, during
nonworking time, from distributing literature in nonworking areas in support of
Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor
organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor organiza-
tions to join or assist Retail, Wholesale and Department Store Union, AFL-CIO,
or any other labor organization, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for the purposes of col-
lective bargaining or mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL offer Joseph Landry immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges, and make whole Joseph Landry and Sherman Wilder for
any loss of pay suffered as a result of the discrimination against them.
All our employees are free to become, remain, or refrain from becoming or re-
maining members of any labor organization.
GOTHAM INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 24 School
Street, Boston, Massachusetts, Telephone No. 523-8100, if they have any question
concerning this notice or compliance with its provisions.
Harris Paint Company, a wholly-owned subsidiary of Bernz-0-
Matic Corp . and Teamsters, Chauffeurs and Helpers Local
Union No. 79, affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of Amer-
ica, Independent . Case No. 1,0-CA-2780. December 14, 1964
DECISION AND ORDER
On July 21, 1964, Trial Examiner John F. Funke issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in unfair labor practices as alleged in the complaint, and
recommending that the complaint be dismissed in its entirety, as set
150 NLRB No. 15.